ST. ANDREWS BURGH EXTENSION AND LINKS ORDER CONFIRMATION BILL. [H.L.] (Hansard, 26 June 1913)

§ LORD EVERSLEY

My Lords, the Bill to which I ask the House to give a Second Reading this evening is identical with the one which I was able to persuade your Lordships to pass through all its stages two years ago. The Bill was in that year referred to a Select Committee, which was presided over by Lord Alverstone, the Lord Chief Justice, and of which Lord Robson was a member. It would be difficult to choose two noble Lords more able to deal with such a question as this, and I deeply regret that serious illness prevents both of them from taking part in this discussion. I am quite certain that had they been able to be present they would have given the Bill their full support.

The Bill of 1911, after passing this House with unanimity, went to the other House, where it was in charge of a private 680 Member, but he failed to obtain time there for its discussion. Last Year and this year no fewer than fifteen Members of the House of Commons balloted for precedence for the Bill at the beginning of the session, but unfortunately they were not successful. I should not now venture to ask your Lordships' House to devote time to the passing of the Bill again if the prospects were that when passed here it would go down to the other House and be left in the lurch as was the case two years ago. On this occasion I have the promise of His Majesty's Government that if the Bill passes through your Lordships' House they will treat it as a Government Bill when it gets to another place, and, if possible, give time for its passing. At all events the position will be a very favourable one, and even if the state of business should prevent the Bill passing this year the Government will then be pledged to introduce it next year and pass it as a Government Bill. But I still hope that it will pass into law this year, because I am perfectly certain that there is no valid opposition whatever in the House of Commons to the Bill. Such opposition as there is is of a purely obstructive character on the part of four or five Members. The Bill, in fact, has twice passed Second Reading in the other House without opposition and without discussion. On another occasion a short discussion and a Division took place, but the Second Reading was carried by a majority of twelve times the number who voted in the minority, those voting against the Bill numbering only thirteen. Therefore I think it may be accepted that the Bill has the almost unanimous support of both Houses of Parliament; but its fate is an illustration of the difficulty, even in such favourable circumstances, of passing measures of this kind when they are in the hands of private Members.

I do not think I should be justified in these circumstances in detaining the House at any length by entering upon a defence of the Bill; but it will, perhaps, be expected of me that I should restate in as few words as possible the object and purport of the Bill. Of late years in many cases where claims have been made in respect of public rights of way, especially in rural districts, difficulty has occurred owing to the fact that the land or part of it over which the right of way passes has been in family settlement or entail dating from a period long anterior to any time in respect of 681 which evidence of user can be given. Where that is the case the judges have differed in their treatment of the question which has arisen. Some Judges are of opinion that where the evidence of user is subsequent to the commencement of the family settlement, during the existence of which no person has been in a position to dedicate the right of way to the public, the public cannot maintain its right; and the Lord Chief Justice is one of the Judges who have given an opinion to that effect. Other Judges, on the other hand, have held that where the evidence of user goes back as far as the memory of man and where the family settlement has been anterior to the commencement of the evidence which has been given, it is lawful to presume that user dated back long before the family settlement and that dedication took place at a date anterior to the commencement of the settlement. One learned Judge went so far as to say that he would presume that dedication took place as far back as the Norman Conquest if that was necessary for the purpose of maintaining a right of way of this kind.

Owing to this conflict of opinion on the part of the Judges great difficulty has occurred. The question has never been decided by the superior Courts. My own belief is that if the case could come before the superior Courts the decision would be in favour of the public. But local authorities have been unwilling, on account of the expense, to go to the superior Courts with the prospect of the case ultimately coming to the House of Lords. One result of this division of opinion among the Judges is that local authorities are very unwilling to maintain rights of way as they are required to do under the Local Government Act, 1894, lest they should have family settlements sprung upon them at the trial and have a Judge averse to public rights in the direction of which I have spoken and in that way lose the verdict and be liable for heavy costs. In these circumstances it is, in my opinion, absolutely necessary that some change in the law should be made. I think that is the view of nearly every lawyer who has looked into the matter, and it was the unanimous opinion of the Select Committee which investigated the question in 1911.

The same kind of question arose some years ago in respect of private rights of way and other easements claimed by landowners over adjoining land, and Parliament 682 interfered in the matter and passed the Prescription Act of 1832 with a view of settling the law as regards private rights of way. Parliament in that Act laid down the rule, where right of way or other easement was claimed by one landowner over the land of an adjoining owner which was in the absolute possession of the adjoining owner and not affected by any settlement or anything of the kind, that twenty years user would give an absolute right; and in the case of land under a family settlement or any other disability of that kind, that forty years user would give an absolute right. The Bill now before your Lordships is for the purpose of extending that law to public rights of way. In other words, if this measure passes into law twenty years user by the public in respect of a right of way over land where there is absolute ownership will give a full right to the public; on the other hand, where the land is subject to a family settlement or any disability of that kind forty years user will give an absolute right to the public independent altogether of the question of dedication. That is the meaning of the Bill.

I will only add that the Bill has the unanimous support of almost every highway authority throughout the country. Six hundred local authorities who are highway authorities have petitioned in its favour. The County Councils Association and the District Councils Association have also carefully considered the Bill and strongly support its passing into law. I believe that at the present moment public rights of way are infinitely more valuable than ever they have been in the past. Now that motors, motor-cycles, and traction engines have invaded our rural roads and made them dangerous to the pedestrian, and hateful on account of the smell and the dust, everybody admits that the footpaths are more valuable than ever before. For it is only when a pedestrian can get on to a footpath that he can feel safe and can enjoy rural scenery. From that point of view I consider this Bill of extreme importance, and if it is not passed into law speedily many footpaths which are now enjoyed by the public in rural districts will be lost. I have great hopes that your Lordships will again pass the Bill through all its stages, and I trust that it may be adopted by the House of Commons and may pass into law in the present session. I beg to move.